Citation Nr: 0010670
Decision Date: 04/21/00 Archive Date: 04/28/00
DOCKET NO. 98-19 866 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Minneapolis,
Minnesota
THE ISSUE
Entitlement to payment of unauthorized medical expenses
incurred in connection with private hospitalization from May
17, 1997 to May 28, 1997.
REPRESENTATION
Appellant represented by: Minnesota Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
J. D. Parker, Counsel
INTRODUCTION
The veteran served on active duty from July 1964 to June
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision issued in August 1997 by
the Medical Administration Service (MAS) of the Minneapolis,
Minnesota, VA Medical Center.
REMAND
I. Factual Background
The veteran is in receipt of a 100 percent schedular
disability rating for his service-connected post-traumatic
stress disorder, and a noncompensable rating for service-
connected left ear hearing loss. In a letter dated in
September 1998, the veteran contends that he is entitled to
"medical coverage benefits without limitation on the
condition of care needed and the classification deemed as
emergency care."
A Report of Contact with the veteran dated in June 1997
reflects the veteran's claim for payment for expenses
incurred during private hospitalization from May 17, 1997 to
May 28, 1997 at Healtheast St. John's Hospital in Maplewood,
Minnesota. Prior to this period of hospitalization, the
evidence of record reflects that the veteran had been taken
by ambulance to Ramsey Medical Center, where he was
hospitalized from May 14, 1997 to May 15, 1997. On May 15,
1997, because lifting of plaque from the femoral arterial
wall caused pain and coldness to the right lower extremity,
the veteran decided to leave Ramsey Medical Center, and
signed out against medical advice. An Emergency Department
report from Healtheast St. John's Hospital in Maplewood,
Minnesota, reflects that the veteran signed out because of
his perception that no one was listening to him regarding his
leg. The Report of Contact reflects the veteran reporting
that he did not like to come to the VA medical center because
of his post-traumatic stress disorder.
The Report of Contact reflects that, on May 17, 1997, the
veteran's wife drove him to Healtheast St. John's Hospital
because of complaints of chest pain. An Emergency Department
report from Healtheast St. John's Hospital dated May 17,
19997 reflects that the veteran was seen in the emergency
room with complaints of right leg pain and feelings of
coldness to the right leg since several hours after
angioplasty during hospitalization at VA. Because of severe
arterial insufficiency due to diffuse atherosclerotic
disease, with bilateral superficial femoral artery occlusion
and left external iliac artery stenosis, the veteran was
admitted.
The veteran remained hospitalized until May 28, 1997, during
which time he was treated for peripheral vascular disease,
status post aortobifemoral bypass. On May 20, 1997, he
underwent aortobifemoral bypass, and on May 21, 1997 he was
taken to the operating room again as one of the stitches had
apparently caused a stitch hole in the aorta and he had some
blood loss into the abdomen, and the veteran received blood
transfusions and was also on the ventilator for a short time.
The discharge diagnoses were peripheral vascular disease,
status post aortobifemoral bypass, angina, and acute renal
failure secondary to cardiac arrhythmia and hypotension.
The August 1997 letter decision by the MAS currently on
appeal reflects that the veteran's claim for payment was
denied because VA facilities were feasibly available to
provide the care.
In a letter to his U.S. senator dated in September 1997, the
veteran wrote that, following his release from the VA
hospital, "over the weekend, I had another blood clog [sic]
which prompt[ed] another emergency visit to a nearby hosiptal
[sic]" because VA "is not set up to handle an emergency
over the weekend." He also wrote that VA was notified of
his hospitalization and VA recommended that, because he was
getting emergency medical care at the private hospital, he
"could seek follow-up care with V.A. after my condition
stabilize[d]."
A review by a VA fee basis staff physician dated November 4,
1997 indicates that it is true generally that VA (facility
not indicated) does not accept 911 transports, including if
the patient is not stable or symptoms indicate special needs
such as a monitored bed. The physician also indicated that
if a patient had chest pain, shortness of breath, seizure,
etc., he would not come to the VA medical center (particular
VA facility not indicated).
In his notice of disagreement dated in April 1998, the
veteran wrote that he left the VA hospital due to "non-
care" and that contact with VA could not be made because it
was a Saturday. The veteran wrote that the VA facility did
not have emergency unit or emergency staff on weekends, and
the veteran had previously had bad experiences with VA.
In a letter to the veteran dated in April 1998, it was
indicated by MAS that a staff physician had reviewed the
claim and determined that the services provided the veteran
from May 17, 1997 to May 27, 1997 were not emergent and that
VA facilities were available.
A letter dated in May 1998 from a private physician, Phil
Roy, M.D., reflects that he treated the veteran on May 18,
1997 "on an emergent basis" and that this was an
"emergency hospitalization." Angiograms were performed
which disclosed complete right iliac artery obstruction
secondary to a thrombosis. Proceeding "on an urgent basis"
to attempt to declot the system, attempted dissection of the
arteries was undertaken. The veteran was taken "on an
urgent basis" to the operating room where an aortobifemoral
bypass was done with a right femoropopliteal bypass graft,
and a Witzel gastrostomy. Thereafter, the veteran continued
to have cardiac irregularities for which he was seen by a
consulting cardiologist, and he had a secondary bleed of his
graft, probably secondary to anticoagulants, and a technical
tear of a suture hole, so that he was reexplored on May 21,
1997, and thereafter had a very pleasing recovery.
II. Law
When there is no prior authorization for payment of medical
expenses, the law provides that veterans entitled to hospital
care or medical services may be reimbursed (or payment made,
under specific circumstances on their behalf to another
facility, etc.), under certain circumstances, for the
reasonable value of such care or services for which such
veterans have made payment from sources other than VA. The
circumstances set forth under the law 38 U.S.C.A. § 1728
(West 1991) and 38 C.F.R. § 17.120 (1999) are specific, and
include the following:
(1) Such care or services were rendered in a medical
emergency of such nature that delay would have been hazardous
to life or health;
(2) Such care or services were rendered to a veteran in need
thereof:
(A) for an adjudicated service-connected disability;
(B) for a nonservice-connected disability associated
with and held to be aggravating a service-connected
disability;
(C) for any disability of a veteran who has a total
disability permanent in nature from a service-connected
disability, or
(D) for any illness, injury or dental condition in the
case of a veteran who is 1) a participant in a vocational
rehabilitation program; and 2) medically determined to have
been in need of care or treatment to make possible such
veteran's entrance into a course of training, or prevent
interruption of a course of training, or hasten the return to
a course of training which was interrupted because of such
illness, etc.; and
(3) VA or other federal facilities were not feasibly
available, and an attempt to use them beforehand or obtain
prior VA authorization for the services required would not
have been reasonable, sound, wise or practical, or treatment
had been or would have been refused.
The Court has also held that the law, with respect to
reimbursement for unauthorized medical treatment, requires
that each criterion must be met to prevail in a claim for
reimbursement. See Hayes v. Brown, 6 Vet. App. 66 (1993);
Parker v. Brown, 7 Vet. App. 116, 119 (1994).
The regulations also provide further explanation and guidance
regarding the feasibility criteria referred to in 38 C.F.R. §
17.120(c). Admission to a private or public hospital at VA
expense may be authorized only if a VA medical center or
other Federal facility is not "feasibly available." 38
C.F.R. § 17.53 (1999). Factors to be considered are the
urgency of the veteran's medical condition, the relative
distance of travel, and the nature of treatment required.
Id. Additionally, if care at a private or public hospital is
authorized at VA expense under any of these factors, the
authorization may be continued only for the "period of time
required to stabilize or improve the condition to the extent
that further care is no longer required to satisfy the
purpose for which it was initiated." Id.
III. Emergency Treatment Determination
Based on the above evidence, the Board finds that the care
the veteran received at the private hospital beginning on May
17, 1997 was under medical emergency conditions. The
statement from the treating private physician during that
hospitalization who characterized the treatment as "on an
emergent basis" and as "emergency hospitalization,"
coupled with the clinical findings of complete right iliac
artery obstruction secondary to a thrombosis, and the
undertaking of a right femoropopliteal bypass graft, clearly
reflect the emergency nature of at least initial treatment
during this hospitalization. See 38 U.S.C.A. § 1728; 38
C.F.R. § 17.120(b). The opinion by a VA physician, reported
in an April 1998 letter denying the veteran's claim, reflects
the bare conclusion, with no explanation for the basis of the
opinion, that services provided the veteran during private
hospitalization from May 17, 1997 to May 27, 1997 were not
emergent. The Board finds that the fact that the veteran's
wife drove him to the hospital instead of utilizing 911
services, as well as the bare conclusion by a VA physician
that services provided were not emergent, are of lesser
significance than the actual clinical picture and the private
treating physician's more thorough statement regarding the
emergent nature of the veteran's condition during
hospitalization.
IV. Feasible Availability of VA or Federal Facility
With regard to the further question of whether a VA medical
center was feasibly available, the evidence does not appear
to support the MAS' conclusion that it was. In this regard,
it appears (from the VA fee basis staff physician note dated
November 4, 1997) that the (unspecified) VA Medical Center
does not accept 911 transports, including if the patient is
not stable or symptoms indicate special needs such as a
monitored bed. The physician also indicated that if a
patient had chest pain, shortness of breath, seizure, etc.,
he would not even have come to a VA Medical Center. While
the MAS, including, apparently, VA physicians (though their
opinions are not directly of record), concluded that VA
facilities were available to provide care, this statement
does not support that bare conclusion. The reported VA
medical opinion does not discuss the urgency of the veteran's
medical condition, the relative distance of travel, or the
nature of treatment required, including what specific
treatment could or would have been provided by a VA Medical
Center at any time during the hospitalization, including
whether a VA Medical Center could have or would have
performed an aortobifemoral bypass or other procedures
performed during the relevant period of private
hospitalization. Additionally, the veteran has alleged that
VA Medical Center is not open on weekends for treatment.
While this assertion is not proven, neither has it been
rebutted by VA, nor have any specific explanations been
offered by MAS as to whether the veteran's presenting
condition on May 17, 1997 (or conditions treated during
hospitalization) would have been treated or refused had he
presented to a VA Medical Center on May 17, 1997.
38 U.S.C.A. § 1728(a)(3); 38 C.F.R. § 17.120(c). The mere
fact that a VA medical center is in the same city as a
private hospital does not establish that it is feasibly
available. See Cotton v. Brown, 7 Vet. App. 325, 328 (1995).
The remaining question in this case, then, is whether other
VA facilities or other Federal facilities were feasibly
available during the relevant period of hospitalization. See
38 U.S.C.A. § 1728(a)(3); 38 C.F.R. § 17.120(c). As to this
question, the record is silent as to whether other VA or
Federal facilities were available to the veteran, including
any VA or Federal facilities that provide emergency
treatment, and the record is silent as to such factors as the
relative distance of travel, especially in light of the
urgency of the veteran's medical condition and the nature of
treatment required. See 38 C.F.R. § 17.53.
Moreover, further development is required to determine the
period of time the veteran's emergency treatment at the
private hospital continued during the period of
hospitalization. There is no opinion of record regarding
what period of time was required for the veteran's initial
emergent condition on May 17, 1997 to stabilize or improve,
if, in fact, it did stabilize or improve, during the period
of hospitalization ending May 28, 1997. The only opinion of
record, by the private physician, was that the veteran's
"emergent care," at some undefined point, became treatment
"on an urgent basis." Therefore, further development is
warranted as indicated below.
In light of the above, the Board is of the opinion that
additional development is warranted. In order to afford the
veteran due process of law, the case is REMANDED for the
following actions:
1. The MAS should provide specific
information regarding: the distance in
miles to the nearest VA or Federal
facility or facilities, relative to the
veteran, the VA Medical Center referenced
in the MAS decisions, and the private
Healtheast St. John's Hospital; whether
such VA or Federal facility or facilities
provide emergency treatment of the nature
presented by the veteran on May 17, 1997;
and whether the veteran would have been
treated or would have been or refused
treatment on May 17, 1997 had he
presented to such a VA or Federal
facility.
2. The MAS should obtain a written VA
medical opinion as to: 1) whether, in
light of the urgency of the veteran's
medical condition, the nature of
treatment required, and relative distance
of travel to the nearest VA or Federal
facility, travel to such VA or Federal
facility was feasible; and 2) whether the
veteran's initial emergent condition on
May 17, 1997 stabilized or improved
during the period of hospitalization
through May 28, 1997, and, if so, what
period of time was required for it to
stabilize or improve so that transfer of
the veteran to a treating VA facility was
feasible.
3. The MAS should readjudicate the issue
of entitlement to payment of unauthorized
medical expenses incurred in connection
with private hospitalization from May 17,
1997 to May 28, 1997.
4. The veteran has a right to present
any additional evidence or argument while
the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369
(1999); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992).
If the benefit requested on appeal is not granted, the RO
should issue a supplemental statement of the case to the
veteran and his representative, and a reasonable period of
time for a response should be afforded. Thereafter, the case
should be returned to the Board for further appellate review,
if otherwise in order. By this REMAND, the Board intimates
no opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).
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